MZYJN v Minister for Immigration & Anor [2011] FMCA 90 (31 January 2011)

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MZYJN v Minister for Immigration & Anor [2011] FMCA 90 (31 January 2011)

Last Updated: 24 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYJN v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 90

MIGRATION – Application for judicial review of the Refugee Review Tribunal – decision of the Refugee Review Tribunal upheld and application dismissed – costs ordered.

Migration Act 1958 (Cth), ss.424(a), 425

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 SZOBC v Minister for Immigration and Citizenship [2010] FCA 712

Applicant:

MZYJN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1150 of 2010

Judgment of:

Whelan FM

Hearing date:

31 January 2011

Date of Last Submission:

31 January 2011

Delivered at:

Melbourne

Delivered on:

31 January 2011

REPRESENTATION

The Applicant

In person

Counsel for the Respondents:

Ms Symons

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The Application be dismissed.
(2) The Applicant shall pay the costs of the First Respondent fixed at $5,865.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 1150 of 2010

MZYJN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application under the Migration Act 1958 (Cth) in which the Applicant seeks certain orders to quash the decision of the Refugee Review Tribunal (“the RRT”) of 26 July 2010. The Applicant also seeks an order that the Tribunal review, according to law, the decision of the delegate of the Minister to refuse a protection visa sought by him. The Applicant arrived in Australia on 9 July 2008 on a visitor’s visa granted to him for the purpose of attending World Youth Day. He applied for a protection visa on 3 July 2009. The Applicant is an Indian citizen. He claims he would be persecuted if he returned to India on the grounds of his religion, being a Christian.
2. On 12 August 2009, a delegate of the Minister refused the protection visa application. On 10 September 2009, the Applicant applied to the RRT to review the delegate’s decision. There was a hearing conducted by the RRT on 11 November 2009. On 10 December 2009, the Tribunal received correspondence from the Applicant, enclosing a police report made by the Applicant’s father. The report by the Applicant’s father concerned an attack and threats made to him, in relation to the Applicant, on 21 August 2009.
3. On 5 May 2010, the Tribunal wrote to the Applicant, inviting him to comment or respond to information that the Tribunal considered would be the reason or part of the reason to affirm the decision of the delegate. On 1 June and again on 13 July 2010, the Tribunal received correspondence from the Applicant, enclosing various articles and photographs. On 26 July 2010, the Tribunal decided to affirm the delegate’s decision. On 18 August 2010, the Applicant applied to this court for a judicial review of the decision of the RRT.
4. The grounds on which the Applicant seeks relief are as follows:

Ground 1 is that the Tribunal decision was in breach of s.424A(1) of the Migration Act. The particulars given for that ground are that there was certain adverse information used by the Tribunal to affirm the decision, and that the Tribunal did not disclose that information to the Applicant in accordance with the provisions of the Act.

Ground 2 of the application is that the Tribunal made an error of law and lacked procedural fairness.

Ground 3 is that the Tribunal denied the Applicant natural justice because it failed to provide a further opportunity before the Tribunal.

5. The Applicant did not seek to amend the application or to provide any further or better particulars, and nor did he provide any written submission prior to the hearing. Each of the grounds was put to the applicant by the Court and he was invited to address the Court to elaborate on the matters on which he sought to rely.
6. In relation to ground 1, the Applicant was unable to identify the information to which he referred in his application. In relation to ground 2, the Applicant was unable to identify any error of law by the Tribunal, nor was he able to indicate in what way he had been denied procedural fairness by the Tribunal. In this respect, his submission, in essence, was that the Tribunal did not accept his case. In relation to ground 3, the Applicant indicated that he did not seek a further hearing from the RRT. He did provide further material to the Tribunal following the hearing and he also received correspondence from the Tribunal on 5 May, and sent material in response to that on 1 June and 13 July.
7. The decision record of the Tribunal is set out in the court book at pages 93 to 165.
8. The Tribunal found that the Applicant was an Indian National and a Christian and that he was a member of the Catholic Yuva Dhara. The Tribunal did not accept the veracity of much of the information provided to it by the Applicant concerning his claim that he had, in the past, been subject to serious harm by reason of his religion. Nor did the Tribunal accept that there was a real chance that he would face serious harm such as to constitute persecution should he return to India.
9. In relation to ground 1 of the application, the Respondent submitted that the Tribunal relied on the following information:

Information provided by the Applicant in his original application for a protection visa;

Information provided by the Applicant in his review application; and

Country information.

10. None of this type of information is covered by s.424A(1) because of the provisions of s.424A(3)(a), (b) and (ab). The only other information relied upon by the Tribunal arose from the information provided by the Applicant himself and this consisted of the discrepancies and inconsistencies it found in that information. As Ms Symons submitted, s.424A relates to evidentiary material and not to the existence of doubts or inconsistencies identified by the Tribunal.[1] I am satisfied that in this case, the information referred to by the Applicant does not fall within the ambit of s.424A(1). I am therefore satisfied that ground 1 of the application is not made out.
11. In relation to ground 2, the Respondent submits that the Applicant has not identified any error of law or lack of procedural fairness. Apart from s.424A, the only other relevant provision is s.425. In that respect, the Applicant was invited to attend the hearing. He did attend and participated in the hearing. There is no evidence that he was not able to participate in a satisfactory way in the process. On 5 May 2010, the Tribunal wrote to the Applicant and identified a number of matters on which he was invited to comment or respond. The Applicant’s inconsistent evidence was not a matter about which s.425 required that he be given notice.[2] I am satisfied that ground 2 of the application is not made out.
12. The Respondent submits that ground 3 effectively repeats ground 2. Before the Court, the Applicant admitted that he did not seek a further opportunity before the Tribunal. The hearing was on 11 November 2009. The Tribunal’s decision was on 26 July 2010. The Applicant did provide further information to the Tribunal on three occasions during that period and that information is referred to in the Tribunal’s decision record. I am not satisfied that ground 3 of the application has been made out.
13. The application is therefore dismissed and I turn now to the question of costs.
14. As I have found that none of the grounds of the application have been made out and the Applicant has been entirely unsuccessful in this matter, I am satisfied that an order for costs is warranted.

I certify that the preceding 14Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !fourteenfourteen (14) paragraphs are a true copy of the reasons for judgment of Whelan FM

Date: 23 February 2011

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[1] SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609.
[2] SZOBC v Minister for Immigration and Citizenship [2010] FCA 712.